D.O.F. 01.08.2012
D.O.O. 08.01.2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. Sona Jayaraman K. : Member
Sri. Babu Sebastian : Member
Dated this the 8th day of January, 2014.
C.C.No.228/2012
V Sudarsan
No.7, Golden Enclave, : Complainant
Thottada
Kannur
PIN : 670 007
Proprietor
Pioneer Auto Engineering : Opposite Party
Kannothumchal Road
Kannur – 2.
(Rep. by Adv. E.R. Vinod)
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite party to pay an amount of `1,00,000 as compensation.
The case of the complainant in brief are as follows : Complainant purchased a Maruthi car in December, 2009 from Popular Motors. Thereafter, the complainant availed service of opposite party for all the services and repair works except the first free services. The last periodic service was carried out on 27th April 2012 from opposite party, for which he had paid an amount of `2900. On 30.04.2012 when he went to Thalassery the car stopped several time on the way and the same totally stopped at Meethala Peedika, wherefrom he approached the nearby workshop at Dharmadom bridge and a mechanic from there went and took the car to workshop without starting. Though it was inspected they could not find serious mistake but an attempt of half an hour work they made started the vehicle and the complainant resumed the journey but experienced with unsatisfactory functioning of the vehicle with some unusual sound in the engine. Then the vehicle was taken to Sree Lakshmi Auto works. On their inspection it was found that the oil pump is faulty and told him that since there was no engine oil circulation he cannot drive the car further and if continued to drive, the engine as a whole would be destroyed. He kept the car there expecting it would be repaired within days. The incident was communicated the mechanic in Pioneer Motors and he told the complainant that they would take the vehicle to their workshop and repair it from there as part of their obligation. On May 1st the vehicle was taken to Pioneer and started repair from next day onwards. When he enquired they replied that it was due to some sort of mote that appeared on the head of the oil pump and could be repaired. When he called next day it was told that the faulty part had been given in lathe and they would be able to continue the work only after getting that part made ready from there. Then he received communication on 7th that the repair work was over and he went there to fetch the vehicle. They issued a bill for `14,000. When he told them that they have had certain responsibility since the vehicle had taken after service from there only two days before incident. Then they reduced the bill amount to `13500. Then he paid only `3500 telling them to pay the balance after using the vehicle for some days. It was agreed and also told him that timing wanted to be adjusted and the same could be done aftr running 500 Km. But within two days running the engine sound changed and pulling reduced and was taken again to pioneer. After driving the vehicle they told him that there were some mistake and it could be rectified by time adjustment but that can only be done after cooling the vehicle very well. So it was kept their for one day. When we took the vehicle next day evening he was told everything was repaired. But after three days running the same defects occurred again and vehicle was taken to opposite party. It was checked and told him to change the oil pump which was already repaired with cost of `13500 few days back from them. When it was question he could not give any explanation but claimed that they have done periodic service on 27th April and as a part of service the old pump was changed. At the time when the vehicle was taken for usual service there was no defect. The condition of the vehicle became bad since it was allowed to service by unskilled workers. In order to make the engine in its old condition he has to spend a huge amount. He has already suffered much loss and sufferings. Hence this complaint.
Pursuant to the notice sent by the Forum opposite party made appearance and filed version denying the contentions of complainant. The brief contents of the version of opposite party are as follows : It is true that the last periodic service had been availed from them and he was charged `2900. But it is not correct to say that on 30th April 2012 the car was stopped several time due to malfunctioning of engine and it was completely stopped in Methilepeedika. Opposite party was not aware whether it was taken to nearby workshop. It is true that the vehicle was taken to their workshop using crane and after repair the charge was settled for `13,500 instead of `14,000. Out of that complainant paid `3500. An amount of `10,000 is still due. Eventhough complainant violated the service conditions since he brought the vehicle only after coverage of 34,028 Kms instead of 30000 Kms. This opposite party extended the service. He never availed service in-connection with oil pump or cylinder head of the vehicle during the said period. He never raised complaint of foul sound or starting trouble. The vehicle caused starting problems due to the obstruction of oil flow from the oil pump to cylinder head due to the deposit of carbon in the oil passage. When the vehicle used again and again even after experiencing these kind of problem, it affected adversely the function of cylinder head and ultimately resulted to a total stop. Periodical service was availed by the complainant only when completed 34,621 Kms which shows negligence and carelessness. This opposite party subsequently attended the defects suffered by the vehicle satisfactorily. Now the vehicle is using by the complainant without any problem. Complainant is liable to pay the balance bill.
On the above pleadings, the following issues have been taken for consideration.
- Whether there is any deficiency in service on the part of opposite party?
- Whether the complainant is entitled for the remedy as prayed in the complaint?
- Relief and cost.
The evidence consists of the oral evidence adduced by complainant and Ext.A1 and A2 marked on his side. Though complainant was elaborately cross examined, opposite party neither entered into witness box in order to adduce oral evidence nor produced and marked any documents.
Issues No.1 to 3 :
Admittedly complainant availed last periodic service of his car from opposite party and it charged `2900. Problem developed immediately two days after the service when he was travelling to Thalassery. The vehicle was first taken to one Sreelakshmi Auto Works and thereafter on contacting opposite party it was arranged to carry to his Pioneer Motors at Kannur by using crane. After the repair work an amount of `14000 was claimed as charge and finally settled for `13,500 out of which an amount of `3500 paid then and the rest kept as balance due to be paid later.
Complainant’s case is that he deferred the payment of balance only to verify and check whether the rectification was alright. But within few days the car started malfunctioning. Hence he is not liable to pay the amount. At the time of taking the vehicle opposite party told that timing wanted to be adjusted and the same can be done after running 500 Kms. When the vehicle was taken to him due to trouble again he said that would be alright on adjusting the timing. But it was not rectified and occurred trouble again and finally opposite party told him that oil pump malfunctioning is the defect and it will cost about `15000 to `20000.
Ext.A1 goes to show the payment of periodic service on 27.04.2012. That is an admitted fact that periodic service was done from opposite party and paid `2900. Ext.A2 is the bill issue by opposite party on 07.05.2012 as part payment of repair. The actual repair charge was 13,500. Vehicle was again and again taken for repair. Within few days difference but the defect could not be rectified. Complainant gave evidence by way of affidavit that at last opposite party asked him to change oil pump that costs about `15000 to `20000.
Opposite party contended that the vehicle suffered defect only due to the negligence and careless act of complainant. The defects were satisfactorily attended subsequently by the opposite party and now the vehicle is using by the complainant without any problem.
However, opposite party did not come forward for the purpose of adducing evidence after posting the case for opposite party’s evidence. Complainant adduced evidence by way of chief affidavit and further he was elaborately cross examined for opposite party. Opposite party on the other hand did not appear for cross examination. Opportunity was not given to cross examine the opposite party for complainant. Pleading by version itself is not evidence. No evidence adduced by opposite party. Opposite party was given ample opportunity to adduce evidence but opposite party did not utilize the same. Opposite party sought adjournment for adducing evidence on several occasion. Two occasions cost imposed though not paid, for adjournment of his evidence to some other day. Though he got ample opportunity opposite party did not come forward to adduce evidence both oral and documentary.
Since the opposite party purposefully remained absent from adducing evidence, eventhough enjoyed ample opportunities, it can only be assumed that he was not very particular to prove his pleadings and further applying as tactics in order to be free from being cross examined for complainant, after enjoying the chance to cross examine the complainant. The way in which the opposite party conducted the case itself goes to show the type of dealings of opposite party.
There is no need to disbelieve the complainant especially in the light of absence of rebuttal evidence on the part of opposite party. The available evidence goes to show that complainant approached opposite party with his car on several occasion with same complaint within an interval of few days each time. But the defect was not cured. It is pertinent to note that it was on the 3rd day of servicing the vehicle, the complaint developed and the vehicle was brought to repair for which a bill of `13,500 was issued. But within the two days time it again became defective with the same complaint.
If opposite party has adduced evidence to the effect that the vehicle was repaired and cured the defect, the case could have been different. He had no explanation with the condition of the vehicle at the time when the service was done. The then position of the vehicle has its own importance. So taking into account the totality of the case the deficiency in service on the part of opposite party is quite evident. It is quite understandable the feeling of consumer in case of complaint as explained above immediately after a service. That itself reveals deficiency in service on the part of opposite party. Thus we are of opinion that there sis deficiency in service on the part of opposite party.
But the evidence adduced by complainant is not sufficient enough to quantify the total damage sustained by the complainant. Though complainant has to make expenses in order to rectify the defects of the vehicle he did not adduce evidence how much amount is required for the rectification of the defects. Complainant alleges that the vehicle was kept with the opposite party for more than 10 days and thereby sustained loss. It is quite natural that there would be some loss. Complainant did not say how much is the loss. No evidence adduced that is capable of assessing the damage. In short complainant failed to bring out evidence in order to assess the real loss suffered by him. Ext.A1 and A2 reveals that he had paid `2,900 on 27.04.2012 for service charge and `3500 on 07.05.2012 at the time when the vehicle was delivered after repair work carried out, following the first incident of complaint. What is the actual loss he has sustained thereafter is not brought in evidence. It can very well be assumed that there are sufferings to certain extent and consequential loss. Hence we are able to award only a nominal amount of `5000 as compensation and a cost of `1000. Thus the issues No.1 to 3 are partly allowed and orders passed accordingly.
In the result, the complaint is allowed partly directing the opposite party to pay an amount of `5,000 (Rupees Five Thousand only) as compensation and a sum of `1000 (Rupees One Thousand only) as cost of this proceedings within one month from the date of receipt of this order failing which complainant is entitled to execute the order as per the provisions of Consumer Protection Act after the expiry of 30 days.
Dated this the 8th day of January, 2014.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Bill dated 27.04.2012
A2. Cash receipt dated 07.05.2012.
Exhibits for the opposite party
Nil
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
